¶1(concurring specially).
¶2[¶27.] I concur specially to point out that, in my opinion, the trial court ignored two time honored principles that rose from these facts.
¶3[¶28.] The basic facts are that Hoaas stole or misappropriated $68,850 from the corporation and Griffiths and they withheld $58,447 to offset the loss. This conduct was understandable, especially considering the principle that “possession is nine tenths of the law.” Why deliver to a thief or misappropriator money you claim he owes you? Accordingly, the grant of summary judgment by the trial court was premature, if not wrong. The jury should have determined under proper instructions whether it was proper to offset the amount taken.
¶4[¶ 29.] The second time honored principle is that a “person cannot profit from [one’s] own wrong.” Dacy v. Gors, 471 N.W.2d 576, 581 (S.D.1991) (Sabers, J„ dissenting). This principle supports our decision today that Hoaas should not recover a judgment, punitive damages, or costs.